United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING THE REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On October 2, 2017, the report of the Magistrate Judge
(Dkt. #4) was entered containing proposed findings of fact
and recommendations that Petitioner Eric Drake's Verified
Petition to Perpetuate Testimony (Dkt. #1) be denied. Having
received the report and recommendation of the Magistrate
Judge, having considered Petitioner's objections (Dkt.
#9), as well as Petitioner's Amended Verified Petition to
Perpetuate Testimony (Dkt. #6), Petitioner's Motion to
Reconsider, Motion to Set Aside Court's Denial of Rule 27
Proceedings, Motion for New Trial, and Motion to Amend
(“Motion for Reconsideration”) (Dkt. #8), and
having conducted a de novo review, the Court is of the
opinion that the findings and conclusions of the Magistrate
Judge are correct and adopts the Magistrate Judge's
report as the findings and conclusions of the Court.
Petitioner's Verified Petition to Perpetuate Testimony,
Amended Verified Petition to Perpetuate Testimony, and his
Motion for Reconsideration are DENIED.
out in greater detail in the report and recommendation of the
Magistrate Judge, Petitioner seeks permission under Federal
Rule of Civil Procedure 27(a) to depose two 7-Eleven
employees, who Petitioner alleges prevented him from
purchasing a winning Powerball ticket (Dkt. #1 at pp. 2-3).
Petitioner claims “Mr. Doe” and Rahkee Sherma,
employees at a local 7-Eleven, gave him conflicting
information concerning the “cut-off time to play the
Powerball” (Dkt. #1 at p. 2). Petitioner asserts he
“actually picked winning numbers” for the
Powerball, and now seeks to compel testimony under Rule 27(a)
to establish Mr. Doe and Rahkee Sherma's error (Dkt. #1
at pp. 2-3).
October 2, 2017, the report and recommendation of the
Magistrate Judge was entered, recommending that the Verified
Petition to Perpetuate Testimony be denied because it: (1)
failed to meet the requirements of Rule 27; (2) sought to
abuse Rule 27's purpose; and (3) failed to demonstrate
the necessity of a pre-suit deposition with regard to either
Mr. Doe or Rahkee Sherma (Dkt. #4 at p. 3). On October 11,
2017, Petitioner timely filed his objections to the report
and recommendation (Dkt. #9). On the same day, Petitioner
filed his Motion for Reconsideration, which the Court also
treats as objections (Dkt. #8).
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). In their entirety,
Petitioner's objections state:
1. [Petitioner] comes, filing his formal objections to the
magistrate report dated October 2, 2017. [Petitioner] objects
to [sic] Sherman division even having jurisdiction over the
above cause because all evidence appear [sic] to suggest that
one of the deponents reside [sic] in Collin County (Plano)
and not Grayson County.
2. [Petitioner] was mistreated by the manager of the
clerk's office, Karen Sessions on account of his race.
Bigotry seems to flow from this division.
3. Otherwise, the [Petitioner] objects to the magistrate
report in its entirety. If the district judge agrees with the
magistrate report, [Petitioner] requests that he signs [sic]
a final order for the [Petitioner] to appeal the denial of
the [Petitioner's] Rule 27.
(Dkt. #9 at p. 1). Petitioner advances these same or
substantially similar arguments in his Amended Verified
Petition to Perpetuate Testimony (Dkt. #6) and in his Motion
for Reconsideration (Dkt. #8). As such, this Court also treats
both the Motion for Reconsideration (Dkt. #8) and the Amended
Verified Petition to Perpetuate Testimony (Dkt. #6) as
objections to the Court's report and recommendation (Dkt.
#4). See, e.g., Davis v. American Nat'l Bank of
Texas, 2013 WL 1195695 (E.D. Tex. Mar. 22, 2013)
(treating motion to reconsider as objections to report and
recommendation of magistrate judge).
initial matter, the Court finds that Petitioner's
objections are neither sufficiently specific, nor supported
by any authority. See Fed. R. Civ. P. 72(b)(2)
(objections to the magistrate judge's recommended
disposition must be specific). General objections are
insufficient. Petitioner's status as a pro se
litigant does not absolve him of the responsibility to state
his objections with specificity or support his objections
with authority. United States v. Pineda, 988 F.2d
22, 23 (5th Cir. 1993) (pro se litigants are still
required to provide sufficient facts and authority in support
of their claims). Notwithstanding such failure, the Court has
considered Petitioner's objections and finds them to be
meritless. Regarding Petitioner's first objection, as the
Court previously explained in its Order denying
Petitioner's Motion and Objection to Transfer of the
Above Cause to the Sherman Division (Dkt. #3), “[t]here
is no Plano Division of the Eastern District of Texas.”
(Dkt. #10). Turning next to Petitioner's allegation that
an employee of the Clerk's Office discriminated against
him, Petitioner's allegation is wholly unsubstantiated.
Further, Petitioner fails to explain how such alleged
mistreatment impacts or pertains in any way to the report and
recommendation of the Magistrate Judge. See Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam)
(noting that pro se litigants acquire no greater
rights than a litigant represented by counsel, and are
equally subject to the established rules of practice and
procedure). Petitioner's final objection does no more
than state that Petitioner disagrees with the entirety of the
Magistrate Judge's report, but again, fails to dispute
any specific conclusion.
independent review, the Court concludes that the Magistrate
Judge's findings and recommendation are correct. See
Douglass v. United Servs. Auto. Ass'n,79 F.3d 1415,
1429 (5th Cir. 1996) (en banc) (noting that a district court
may alternatively find the magistrate judge's findings
and conclusions were correct even though a party did not
properly object to the report and recommendation).
Accordingly, the Court ...